Wednesday, November 30, 2011

The Fifth Amendment gives us all the right to remain silent. Let's use it. All the time. Please. Even if you are innocent, use it. Even if it's just a traffic violation, use it.

Here is a non-exclusive list of some things you may not know about police interrogations which should be reason enough to exercise your right to remain silent:

the police can lie to you...and often will in order to get you to confess (they can tell you they have it all on tape when in actuality they don't, for instance)

the police are trained in psychological interrogation techniques designed to elicit confessions (the Reid Technique)

the police only want to talk to you because they already, at the very least, suspect you're involved in the crime in some way

you are being audio and video taped...even if you don't see the camera

the police don't have to give you Miranda warnings if you are not in custody and not being interrogated - that means if you go to the police department on your own thinking you are doing the right thing you will not be warned about your constitutional protections prior to police questioning

the police don't have to tell you what they know...and usually won't

the police know how to manipulate what you say - you will not outsmart the police (you are not Dexter)

the police are getting paid to question you therefore they have no motivation to end the questioning - you, on the other hand, will want to leave as quickly as you can

their goal is to get a confession even if it's not for the original offense they started questioning you about

you will not be able to lie and get away with it

you will not be able to talk your way out of an arrest

So, what do you do? Knowledge is power. Know your rights. There is a way to politely and intelligently deal with the police. Always be polite, but always be firm when speaking with the police. For instance, "yes, I will talk to you if I can have my lawyer here"; "no, you cannot search my car"; "no, you cannot come into my house", etc.

You can expect to be verbally bullied when you give this response, but stick to your guns. Be firm. Seasoned, intelligent police officers will be disappointed in this response but they will understand it and won't be offended by it. After all, they know their role, and they know your constitutional rights. You might as well know your rights too, and exercise them!

Monday, November 28, 2011

Well, Texas has done it again. We are in yet another very exclusive category...even within our own nation. Texas is only 1 of 4 states that allow deliberate familial DNA searches. The other 3 are California, Colorado, and Virginia.

With the saturation of television crime scene dramas everyone these days know about standard forensic DNA testing. This involves seeking a direct match between DNA found at a crime scene and the DNA of a suspect. With the advent of the FBI database, CODIS (Combined DNA Index System), in 1998 DNA searches have become a constant reality. It is now a standard condition of felony probation in most counties, including Denton, that the probationer submit a DNA sample for CODIS. It seems harmless enough after all - just a swab of the cheek and that condition can be marked off the list. But is it really harmless...?

Familial DNA searches, on the other hand, implicate broader privacy concerns. Familial DNA searches are searches for a close relative's DNA. They are used when a "suspect" has thus far avoided the "cheek swab" that comes along with any sort of felony disposition (other than an acquittal of course) making the suspect's DNA unavailable to law enforcement. Familial DNA searches are useful because, according to Time Magazine, 48% of people in jail have a relative who has also been incarcerated.

It may be a good investigative tool and pass constitutional muster in the end. But before jumping on board with familial DNA searches it's worth thinking about. Now, how many people will unknowingly be under constant genetic surveillance? Isn't this just something else that makes it all seem a bit too Orwellian??

Thursday, November 17, 2011

When you think about it, it's amazing really. In Texas, a person can be mentally retarded yet competent - competent yet insane. Does that even make sense?

Not too terribly long ago, in Atikins v. Virginia, the US Supreme Court ruled that a mentally retarded person could not be executed - it's a violation of the 8th Amendment prohibition against cruel and unusual punishment. (It's a whole separate issue that it took the United States, one of the most civilized countries in the entire world, until 2002 to come to this realization). However, a mentally retarded person can be put to trial for a criminal act...an intentional or knowing criminal act...and a mentally retarded person can be sentenced to prison - even life in prison. After all, a mentally retarded person, by definition, has significantly impaired cognitive functioning and deficits in two or more adaptive behaviors.

Confused?

In Texas, in order to be competent a person simply has to have a sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding and a rational as well as faction understanding of the proceedings against him. Further, in Texas there is a presumption of competency.

What then of the mentally retarded whom psychologists deem competent? Once a mentally retarded yet technically competent person is subjected to the criminal justice system, chances are that he will forever be a statistic in the criminal justice system absent a loving family or some other source of support. I certainly don't pretend to have all of the answers but there must be a better solution than just warehousing people...mentally retarded people. It is simply beyond comprehension...

Friday, November 11, 2011

As a criminal defense lawyer you get used to being told "no" by prosecutors. No, your guy can't have probation. No, we won't waive a jury. No, we won't agree to a bond reduction. Some prosecutors seem to get mad just because you ask the question (that's a whole separate post for another day). More often than not, criminal defense lawyers are told "no."

And that's fine. It's part of the territory. After all, that's what courtrooms and juries are for - to sort it all out when there is no agreement. However, it doesn't mean that you should stop asking the question just because you have been told "no."

This week was a prime example of persistence paying off. After asking countless times since June and being told "no," I was finally told "okay." (not a firm yes, mind you, but a relenting "okay"). And it mattered to my client and his parents. It means that an enhancement allegation was waived and now he will not be required to do at least half of his time before he becomes eligible for parole. A minor victory in the grand scheme of things but a major win for a client.